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T12696

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1) appeal against decision

Adrian Wayne Venn
(T12696 of 2006)

and

St Anne's Homes Inc

 

FULL BENCH:
PRESIDENT P.L. LEARY
DEPUTY PRESIDENT P.C. SHELLEY
COMMISSIONER J.P. McALPINE

HOBART, 4 August 2006

Appeal against a decision handed down by Commissioner T.J. Abey arising out of T12600 of 2006 - appeal dismissed

REASONS FOR DECISION

[1] In a decision dated 30 May, 2006, Commissioner Abey declined to award compensation to Adrian Wayne Venn.

[2] Mr Venn had lodged an application pursuant to s.29(1) of the Industrial Relations Act, 1984 (the Act) being an application for hearing in respect of an industrial dispute.

[3] The industrial dispute was said to relate to the employer, St Ann's Homes Inc., standing Mr Venn down on full pay pending an investigation. It was agreed before Commissioner Abey that the matter for determination was "whether the suspension of Mr Venn was fair or unfair." [Abey decision para 4]

[4] An appeal has been lodged by Mr Venn (the appellant). The grounds of appeal are:

"The Commissioner found in favour of Adrian Venn that he had been unfairly suspended. During the process the employer terminated Mr Venn which made it difficult for reinstatement and the Commissioner provided no penalty on the employer or did not take into consideration the loss of income to Mr Venn due to his termination of employment by the employer. The Commissioner did not take into consideration the action of the employer in terminating employment during the case being active before the Commission. I do not agree with the Commission that awarding compensation is double counting. The actions of the employer have prevented Mr Venn from completing his training and put him in a position of financial hardship. The decision is sending a clear message to employers `even though they do the wrong thing it is okay as they will receive no penalty.' It was requested that the Commissioner hear the case as termination of employment but thee has been no mention of this in the decision (I request hearing to be in it's (sic) entirety of the actions of the employer that is unfair dismissal). I request the opportunity to present my case before the Full Bench."

[5] Directions were issued to the parties to provide written submissions. On receipt of the submission of the appellant the respondent advised that it was of the view that there was no right of appeal in the matter. The respondent submitted the following:

"The appeal is made under Section 70(1)(b) of the Act.

Section 70(1)(b) states as follows:

(1) An appeal may be made to the Full Bench against:

(b) an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of any termination of employment, including termination resulting from redundancy, or long service leave, or breach of an award or a registered agreement by -

(i) the party who applied for the hearing; or

(ii) the party to whom the order relates; or

(iii) the Minister.

Section 70(1)(b) provides a right of appeal against an order under Section 31(1) after a hearing relating to an industrial dispute, as follows:

(1) In respect of any termination of employment, including termination resulting from redundancy,

(2) Long Service Leave,

(3) Breach of an award or registered agreement.

The matter before the Commission in T12600 of 2006 was not about either 1,2 or 3 above.

In fact in Commissioner Abey's decision in matter T12600 of 2006 he specifically states at paragraph (4) that the applicant's termination of employment was not before the Commission.

The matter before the Commission in matter T12600 of 2006 related to a suspension from duty whilst still employed and the Commission's order was related to that specific matter. The employer's position is that there is no appeal right under Section 70(1)(b) of the Act." ......

[6] Mr Watson, representing the respondent, referred us to a decision of a Full Bench of the Commission in Matter T8573 of 1999, the Automotive, Food, Metals, Engineering Printing & Kindred Industries Union v Pasminco Australia Ltd, trading as Pasminco Hobart Smelter (Pasminco), which was an appeal against a decision by a Commissioner ordering employees at the Pasminco Hobart Smelter "to lift work bans they have implemented currently at that site."

[7] The parties to the dispute reached a settlement and the appeal was withdrawn however in that matter the jurisdiction of the Commission was raised. The Full Bench said:

".....we have considered your submissions and we wish to inform the parties that we are satisfied that no right of appeal exists against an order of this Commission made under section 31(1) unless it falls within the ambit of section 70(1)(b)."

[8] Mr Watson provided a history of all appeals in this jurisdiction and submitted that they fell under the following specific headings:

Alleged unfair termination of employment
Long service leave;
Breach of an award or registered agreement;
Claims for severance/redundancy payment;
Award variation;
Award Interpretation.

[9] Mr Horton, representing Mr Venn, submitted that the application lodged by Mr Venn was in respect to an alleged breach of an award or registered agreement. He said that the issue in dispute was about the failure of the respondent to follow proper procedures as prescribed in the award thereby being a dispute about a breach of an award. We note that there is no indication on the application filed by Mr Venn which alludes to an alleged breach of an award, likewise such was not argued before the Commissioner.

FINDINGS:

[10] We reject the submission made on behalf of Mr Venn. The matter before the Commissioner below was agreed to be "whether the suspension of Mr Venn was fair or unfair."

[11] Section 29(1) of the Act prescribes:

"An organization, employer, employee or the Minister may apply to the President for a hearing before a Commissioner in respect of an industrial dispute."

[12] An order pursuant to section 31(1) of the Act can settle an industrial dispute lodged pursuant to section 29(1) of the Act.

Section 31(1) provides:

"Subject to this section, where the Commissioner presiding at a hearing under section 29 is of the opinion, after affording the parties at the hearing a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing, that anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken."

[13] The remaining provisions of section 31 relate to industrial disputes in respect to termination of employment.

[14] The relevant part of section 70 is 70(b) which prescribes:

"(1) An appeal may be made to the Full Bench against:

(b) an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of any termination of employment, including termination resulting from redundancy, or long service leave, or breach of an award or a registered agreement by -

(i) the party who applied for the hearing; or

(ii) the party to whom the order relates; or

(iii) the Minister." [our emphasis]

[15] We agree with the Full Bench in the Pasminco matter "that no right of appeal exists against an order of this Commission made under section 31(1) unless it falls within the ambit of section 70(1)(b)."

[16] Clearly the order of Commissioner Abey in this matter does not fall within the ambit of section 70(1)(b). Accordingly there is no right of appeal and we reject the application by Mr Venn.

[17] We note that an appeal can be heard and determined in respect to matters specifically prescribed in s.70(1)(b) of the Act. However it seems a dispute about "the mode, terms and conditions of employment," matters not prescribed in s.70(1)(b) cannot be the subject of an appeal. This appears to us to be anomalous. Nevertheless we are aware that it is some 7 years since the issue was first raised by a Full Bench of the Commission and there has been no move to amend the Act to address this anomaly. We therefore presume that such was the intent of the Parliament when promulgating the legislation.

[18] We dismiss the appeal lodged by Mr Venn.

 

P.L. Leary
PRESIDENT

Appearances:
Mr G. Horton for Mr A.W. Venn.
Mr M. Watson of the Tasmanian Chamber of Commerce and Industry Limited with Ms S. Parr for St Ann's Homes Inc.

Date and Place of Hearing:
2006
July 28
Hobart